INTRODUCTION

In day to day life we used to come across many unlawful events taking
place around us. They are of basically two types, one is criminal wrong,
the other is civil wrong which we called Tort. One of the tort we face
maximum times which is most common among all civil wrongs is
NUISANCE. The word Nuisance is derived from the French word
nuire, which means to do hurt, or to annoy. One in possession of a
property is entitled as per law to undisturbed enjoyment of it. But if
someone violates that enjoyment then we say Nuisance has happened.
Nuisance as a tort means an unlawful interference with a persons use
or enjoyment of land, or some right over, or in connection with it. It is
an injury to the right of a person in possession of a property to undisturbed
enjoyment of it and result from an improper use by another person in his
property. This definition of nuisance which is given by Winfield has been
adopted in Bhanwarlal v. Dhanraj, A.I.R.1973 Raj. 212, 216, and Red v.
Lyons & Co., (1945) K.B. 216, 236.
English scholar Sir J.F. Stephen defined nuisance to be anything done to
hurt or annoyance of the lands, tenements of another, and not amounting to
trespass.
According to Salmond, the wrong of nuisance consists in causing or
allowing without lawful justification the escape of any deleterious thing
from his land or from elsewhere into land in possession of the plaintiff, for
example, water, smoke, fumes, gas, noise, heat, vibration, electricity,
disease, germs, animals.
According to Fletcher Moulton J, in Wing v. L.G.O. Nuisance is an
excessive use of some private right whereby a person exposes his
neighbors property or person to danger.
DISTINCTION BETWEEN NUISANCE AND TRESSPASS

Trespass is direct physical interference with the plaintiffs possession of

land through some material or tangible object while nuisance is an injury
to some right accessory to possession but no possession itself. Both
nuisance and trespass are similar in so far as in either case the plaintiff has
to show his possession of land. The points of distinction between the two
are as follows:

If interference is direct, the wrong is trespass, if it is consequential, it

amounts to nuisance. For example, planting a tree on anothers land
is trespass. But when a person plants a tree over his own land and the
roots or branches project into or over the land of another person, that
is nuisance.
Trespass is interference with a persons possession of land. In
nuisance, there is interference with a persons use or enjoyment of
land. For example, person by creating offensive smell or noise on his
own land could cause nuisance to his neighbor.

Apart from this, a trespass is actionable per se, but in action for nuisance,
special damages have got to be proved.
 TYPES OF NUISANCE
During 19th and 20th century, due to competing properties posing nuisance
to each other and cost of litigation, it became difficult to administer the
law of nuisance. Nowadays, most jurisdictions have a system of land
planning which helps in determining which activities are suitable in given
location. To administer the law and to provide justice more precisely
nuisance is broadly divided into two type:
i. Public Nuisance or Common Nuisance
ii. Private Nuisance or Tort of Nuisance

Public Nuisance
Public Nuisance is interference with the right of public in general and in
general and is punishable as an offence.
Under Section 3 (48) of the General Clauses Act, 1897, the words mean a
public defined by the Indian Penal Code.
Section 268 of the Indian Penal Code, defines it as an act or illegal
omission which causes any common injury, danger or annoyance, to the
people in general who dwell, or occupy property, in the vicinity, or which
must necessarily cause injury, obstruction, danger or annoyance to
persons who may occasion to use any public right.
Simply speaking, public nuisance is an act affecting the public at large, or
some considerable portion of it; and it must interfere with rights which
members of the community might otherwise enjoy.
The examples regarding public nuisance can be mentioned as follows:
Causing obstruction in highway.
By letting a land to use as a dump, when results in creating a
dangerous environment.
Keeping pumas in domestic areas, etc.

Obstructing a public way by digging a trench, or constructing structures on

it are examples of public nuisance. Although such obstruction may cause
inconvenience to many persons but none can be allowed to bring a civil
action for that, otherwise there may be hundreds of actions for a single act
of public nuisance. To avoid multiplicity of suits, the law makes public
nuisance only an offence punishable under criminal law.
The legal effect of public nuisance can be of three types:
Firstly, any person can sue under the law of tort where he or she has been
affected a level of degree higher from the general or local public.
Secondly, where the person who is responsible for such a public nuisance,
had knowledge about the effects of such public nuisance, he or she will be
punishable for a criminal offence.
Thirdly, an injunction can be issued by the attorney general or the local
authority under whose jurisdiction such case falls.
The local authorities under Section 222 of the Local Government Act
1972 have the power to execute civil and criminal proceedings in their
own name, although the section does not specifically define whether in
matter of public nuisance or else. By this power the local authorities
exercise it against the matter of public nuisance like granting injunctions.
For example, trading on Sunday, breaking the orders relating to prevention
of trees, trading in unlicensed streets, unlicensed sex shops.
Coming back to first point, if the plaintiff cannot prove that he has suffered
any special damages, i.e., more damage than suffered by the other
members of the public, he cannot claim any compensation for same. This
is clearly explained in Winterbottom v. Lord Derby in which the
defendants agent blocked a public footway. The plaintiff brought an action
alleging that sometimes he had to go by another route and sometimes he
had to incur some expenses in removing the obstruction. In the judgement
he could not recover anything as he had not suffered more damage than
could have been suffered by other members of the public.

Private Nuisance
In private nuisance, it is enough to prove that a person has been affected
by the act or omission of another. Such effect should be related to the use
or enjoyment of the land. And to claim under private nuisance, a person
must prove that he or she lives on the property.
Private nuisance was first defined during 18th century in a case as any
continuous activity or state of affairs causing a substantial and
unreasonable interference with a plaintiffs land or his use or enjoyment of
that land. The damages under private nuisance are recoverable by a person
who have legal interest in the property affected.
The court while hearing a complaint of private nuisance, looks into the
following factors:

The nature of the neighborhood

The place where the interference actually happened
What thing cause such interference
For how long that interference lasted and whether it is still going
on or not
The time at which such interference occurred
The kind of impact caused by such interference
Whether such interference was already existing before entering into
the property
Examples under private nuisance include: Noisy animals, loud air-
conditioners, smoke, overhanging tree branches, roots of tree growing into
neighbors land, interfering with drainage, vibrations and dust, firing gun
on a rifle range, etc.
To constitute the tort of nuisance, the following essentials are required to
be proved:
1. Unreasonable interference;
2. Interference with the use of enjoyment of land;
3. Damage.

1. Unreasonable Interference
Interference may cause damage to the plaintiffs property or may
cause personal discomfort to the plaintiff in the enjoyment of
property. Every interference is not nuisance. To constitute
nuisance, interference should be unreasonable. If I have a house
by the side road of the road, I cannot bring an action for the
inconvenience which is necessarily incidental to the traffic on the
road. So as long as the interference is not reasonable, no action
can be brought. The factors which are taken into account as to
what constitutes unreasonableness includes:

Any abnormal sensitivity of the plaintiff An act which

is otherwise reasonable does not become unreasonable and
actionable when the damages, even though substantial is
caused solely due to the sensitiveness of the plaintiff or the
use to which he puts his property. For example, if certain
kind of traffic is no nuisance for a healthy man, it will not
entitle a sick man to bring an action if he suffers thereby,
even though the damage is substantial.
Time and duration of such interference Some
activities may be reasonable at one time but cant be at
other. For example, in the case of Halsey v. Esso
 petroleum [1961], filling of the oil tankers at 10 am was
held reasonable but at 10 pm it was held unreasonable.
Isolated act of escape An isolated act of escape cannot
be considered as nuisance. In Stone v. Bolton, the plaintiff
while standing on a highway, was injured by a cricket ball
hit from the defendants ground, but she could not succeed
in her action for nuisance. The argument before the court
on which the Court agreed that the ball reaches the
highway very occasionally is an evidence that there was no
danger outside the field.
Malice The presence of malice can also make the
defendant liable for his acts. For example, in Christie v.
Davey [1893] the plaintiff used to take music classes at her
house. Defendant, who is t5he neighbor in this case, didnt
like the noise of music coming from the classes and in
return he shouted and did acts to disturb the music classes.
It was observed by the court that the defendant
intentionally did such acts and an injunction is granted to
the plaintiff.

2. Interference with the use or enjoyment of land

Interference may cause either: (1) injury to property itself, or (2)
injury to comfort or health of occupants of certain property.
An unauthorized interference with the use of the property of
another person through some object, tangible or intangible, which
causes damage to the property, is actionable as nuisance. In St.
Helens Smelting Co. v. Tipping, fumes from the defendant
companys works damaged plaintiffs trees and shrubs. Such
damage being an injury to property, it was held that the
defendants were liable.
Substantial interference with the comfort and inconvenience in
using the premises is actionable as a nuisance.
 3. Damage
Unlike trespass, which is actionable per se, actual damage is
required to be proved in an action for nuisance. In the case of
public nuisance, the plaintiff can bring an action in tort only when
he proves a special damage to him. In private nuisance, although
damage is one of the essentials, the law will often presume it. In
Fay v. Prentice, a cornice of the defendants house projected over
the plaintiffs garden. It was held that mere the fact that the
cornice projected over the plaintiffs garden raises a presumption
of rain water into and damage to the garden and the same need
not be proved. It was a nuisance.

DEFENCES

A number of defences have been pleaded in an action for nuisance Some

of the defences have been recognized by the courts as valid defences and
some others have been rejected. The defences are broadly classified into
effectual defences and ineffectual defences.

EFFECTUAL DEFENCES
1. Prescriptive right to commit nuisance
A right to do an act, which would otherwise be a nuisance, may be
acquired by prescription. If a person has continued with an activity
on the land of another person for 20 years or more, he acquires a
legal right by prescription, to continue therewith n future also. A
right to commit a private nuisance may be acquired as an easement if
the same has been peaceably and openly enjoyed as an easement and
as of right, without interruption, and for 20 years.

2. Statutory Authority
An act done under the authority of a statue is a complete defence. If
nuisance is necessarily incident to what has been authorized by a
statue, there is no liability for that under the law of torts.

INEFFECTUAL DEFENCES
1. Nuisance due to acts of others
Sometimes, the act of two or more persons, acting independently of
each other, may cause nuisance although the act of anyone of them
alone would not be so. An action can be brought against any of them
and it is no defence that the act of the defendant alone would not be
nuisance, and the nuisance was caused when other had acted in same
way.
2. Public Good
It is no defence to say that what is a nuisance to a particular plaintiff
s beneficial to the public in general, otherwise no public utility
undertaking could be held liable for the unlawful interference with
the rights of individuals.
3. Reasonable care
Use of reasonable care to prevent nuisance is generally no defence.

4. Plaintiff coming to nuisance

It is no defence that the plaintiff himself came to the place of
nuisance. A person cannot be expected to refrain from buying a land
on which nuisance already exists and the plaintiff can recover even if
nuisance has been going on long before he went to that place. The
maxim volenti non fit injuria cannot be applied in such cases.

SOME INDIAN CASES OF

NUISANCE
(1) JUGAL KISHORE v. RAM SHARAN DAS [A.I.R. 1943 Lah
306.]

The door of the shop of the plaintiff opened into a narrow lane. The
latrine of the defendant was accessible only through the lane. The
 removal of the stinking nightsoil by way of the lane caused physical
discomfort to the occupant of the plaintiffs shop. The defendant did
not claim any easement to remove the nightsoil through this lane.

It was held that the question was not whether the latrine itself
emitted any foul smell when it was shut but whether the latrine could
be used as such without causing material discomfort to the occupant
of the shop. The latrine must be cleaned once or twice a day and if
the sweeper with stinking filth must pass by the shop of the plaintiff,
the latrine must be held to amount to a nuisance.

(2) GUHURAM GOPE v. UDAY CHANDRA [A.I.R. 1963 Pat 455.]

Two nalas in the plaintiffs land through which water flowed into the
defendants tank across agal portions were natural channels. As the
water accumulated in the agal portion, the defendant with the view
to transfer the evil of any injury to his lands constructed an
embankment or a bundh, thereby by diverting the flow of water of
the channels in another direction. That obstructed the flow of water
through those channels into the tank and resulted in the diversion of
accumulated water into the plaintiffs plot. It was held that it was not
at all open to the defendant to erect such an embankment.
(3) JANKI PRASAD v. KARAMAT HUSSAIN [A.I.R. 1931 All 674]

A thakurdwara and a mosque were very close to each other. The

plaintiffs in a representative capacity brought a suit for declaration
of their right of worship and of taking out processions with music
past the mosque and for an injunction restraining the defendants
from interfering at any time with the aforesaid rights of the
plaintiffs.

It was held that the plaintiffs both in their individual capacity and as
members of the Hindu community had a right to take out religious
and social processions accompanied by music along public roads
even while passing the mosque and a right to perform worship in the
thakurdwara accompanied by music subject in both the cases to any
 orders or directions issued by the magistrate or the police under
Section 144, Criminal Procedure Code, or under other enactments
provided that the exercise of such right did not amount to nuisance
recognized by law. The plaintiff could not be granted injunction
asked for because the defendant had a right to claim that the
plaintiffs should not commit a nuisance.

(4) DHANNA LAL v. THAKUR CHITTORSINGH MAHTAPSINGH

[A.I.R. 1952 MP 240]

A erected a flour mill only at a distance of 8 or 9 feet from the house

of B, did not pay any attention to Bs complaint which he made at
the very inception of the working of As (defendants) flour mill and
did not try to introduce silence in the engine or build the walls round
his mill so high that the noise reaching Bs house would have been
reduced to the minimum or would have been only occasional
inconvenience to him.

It was held that the abnormal noise produced by the flour mill
materially impaired the physical ------------- occupants of Bs house
and as such amounted to act as nuisance.

CONCLUSION A Final
Word
The law related to nuisance is generally uncodified. But it has
increased its scope through judgements and interpretations.

The concept of nuisance generally occurs in a persons day to

day and the decision is made on the basis of facts and
circumstances. It also becomes the duty of the court to
compensate the aggrieved plaintiff and make sure that the
defendant does not get punished unfairly.
 The courts of India have borrowed from the principles of
English and also from the decisions of the common law system
in the matters regarding the law of nuisance. This has also
resulted to the Indian courts in developing their own
precedents. And this resulted in developing a sound system of
law which promises quality and well-being for everyone, i.e.
the society and the parties in a large scale.

In the concept of private nuisance, the plaintiff usually seeks

for the remedy of injunction against the defendant instead of
damages. The reason behind seeking directly the injunction
refers to the granting him a chance to go back straightly in the
enjoyment of peaceful and free environment of his property
which was available to him before the defendant showed his
non-acceptable behavior.